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Colorado Judge: Today’s “Tom Paine’s Pamphlet” Is Protected Speech

Marking a significant victory for free speech, U.S. district court judge John Kane has ruled that the Coalition for Secular Government (CSG) need not comply with Colorado’s byzantine registration and reporting requirements in order to finance and distribute an issue paper that argues against a statewide ballot measure.

CSG recently released the paper, “The ‘Personhood’ Movement Versus Individual Rights,” which Diana Hsieh and I coauthored. The paper argues (among other things) that the so-called “personhood” measure on Colorado’s ballot, Amendment 67, would violate women’s rights to seek an abortion, to use the birth control of their choice, and to seek common in vitro fertility treatments. The paper also makes the philosophic case for a woman’s right to seek an abortion.

In 2008 and 2010, Hsieh registered CSG with the government and filed reports, as required by Colorado law, in order to finance and distribute previous versions of the paper that opposed “personhood” measures on the ballot in each of those years. Kane’s ruling means that Hsieh will not need to comply with the campaign reporting requirements this year. (“Personhood” failed to make the ballot in 2012.)

During the October 3 trial for the case, the government’s lawyers defending the campaign finance laws argued (among many other things) that, because Hsieh was effective in speaking out to a broad audience, the government had an interest in forcing her to register and report. Kane brilliantly replied in his October 10 ruling:

[Is it the case] that the effectiveness of political speech—the fact it resonates, generates interest, and is downloaded from the internet by individuals wanting to read it—somehow elevates or enervates the public’s informational interest in its disclosure? The more vibrant the public discourse the more justified the burdening of the speech is? Surely not. It must be remembered by those older than Ms. Hsieh that the internet is the new soapbox; it is the new town square. CSG’s “personhood” paper is Tom Paine’s pamphlet. It is the quintessence of political speech.

Why is Kane’s ruling a victory for free speech? Consider the laws and rules on the books in Colorado dictating what you must do if you wish to speak out for or against any candidate or ballot measure.

If your group consists of two or more people and you spend more than $200, you must understand and comply with a 152-page document and related materials describing the state’s campaign finance laws; register with the government; regularly report contributions and expenditures to the government; report the names and addresses of contributors who donate $20 or more, and the employers of contributors who donate $100 or more; face the threat of $50 per day in fines for late reports; face the threat of your political opponents dragging you into court for alleged violations of the campaign laws; face the threat of courts imposing substantial civil penalties for technical violations of those laws; and proceed knowing that whatever advice the secretary of state’s office offers may well be rejected by courts if you are sued (as happened to a friend of mine).

It’s no wonder that a Colorado legislator who supports the campaign finance laws admitted, “Complying with all this is complicated, and really does take a lawyer.”

A consequence of the laws is that many people who might otherwise speak out about political matters choose not to do so. I have declined to pursue ideas for producing and distributing political flyers because of the onerous burdens of the campaign laws. And those who do choose to proceed with their political speech face the burdens listed above and are legally forbidden to speak anonymously.

Kane ruled “CSG falls outside the scope of ballot issue-committees to which Colorado’s campaign finance disclosure laws may constitutionally apply.” Further, Kane awarded attorney fees to CSG, warning “state lawmakers that the Secretary will be on the hook for fees every time a group, like CSG, . . . has to sue to vindicate its First Amendment rights.”

Although Kane’s ruling is a great victory for CSG and for free-speech rights in Colorado, it is unfortunately very limited in its scope. Consistent with previous court rulings, Kane allows that the government’s “informational interest” in requiring campaign reports permits government to restrict freedom of speech in other cases, particularly when groups speak out about a candidate rather than a ballot measure.

Further, Kane ruled that throwing out the $200 reporting threshold in favor of a higher one was beyond the scope of his authority. (He didn’t even consider eliminating the requirements.) By way of background, the Tenth Circuit Court previously ruled that there is no “bright line below which a ballot issue committee cannot be required to report contributions and expenditures,” and the secretary of state’s recommendation to raise the reporting threshold to $5,000 was thrown out by the courts. Further, the Colorado Supreme Court declined to clarify the scope of Colorado’s campaign finance laws when Kane asked it to do so. In response to the legal uncertainty caused by this series of court decisions, Kane wrote:

The nature of CSG and its advocacy render any “informational interest” the government has in mandating contribution and expenditure disclosures so minimal as to be nonexistent, and certainly insufficient to justify the burdens compliance imposes on members’ constitutional free speech and association rights.

This conclusion is so obvious, moreover, that having to adjudicate it in every instance as the Colorado Supreme Court implies is necessary itself offends the First Amendment. By setting in stone the uncertainty that precipitated this litigation in the first place, the Court’s interpretation chills robust discussion at the very core of our electoral process. I am without authority, however, to undo the damage done. . . . The wholesale invalidation of Colorado’s $200 contribution threshold for ballot issue committees, though warranted, would go beyond my charge and be improvident.

Kane continued in a passage and an endnote:

[T]his state of affairs means that no precedent has been established and the stability this matter of considerable public importance so needfully requires will have to await another day or days and even more lawsuits. . . . I suggest the “post hoc, case-by-case review” mandated by the Colorado Supreme Court majority is itself unconstitutional. . . . The sheer expense and delay of unnecessary litigation chills, if not freezes entirely, prospective speakers’ resolve to exercise their First Amendment rights and should be mitigated with due haste.

The result is that other groups can only guess whether courts will require them to comply with the campaign finance laws.

Nevertheless, Kane’s decision offers relief to CSG and likely to similar groups, and Kane’s pointed language brings much-needed attention to important aspects of the continuing injustices of Colorado’s campaign finance laws.

Congratulations to Hsieh and to her attorneys, Allen Dickerson and Tyler Martinez of the Center for Competitive Politics, for winning this important victory. And kudos to Judge Kane for ruling in favor of free speech in this case and for eloquently speaking out against continuing infringements of free speech.

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